The ICC's 10 Year Milestone

As the ICC Celebrates its 10th Anniversary What Future Lies in Store for the World's Only Permanent International Court?

By Rumbidzai Maweni
Research Associate, Citizens for Global Solutions

Thursday, July 17^th marked the 10^th anniversary of the International Criminal Court (ICC) and the signing of its founding agreement, the Rome Treaty of 1998. Based in Hague and in operation for five years, the ICC has cemented its place as an independent permanent international court for war crimes, crimes against humanity, and genocide. In conjunction with this milestone, the Court also made headlines the week prior with its indictment of Sudanese president Omar Hassan al-Bashir, (its first of a sitting head) with genocide. Whilst many applaud the Court for the precedent it has set in furtherance of the goal to ensure international justice, sharp criticism from legal experts, human rights activists, and government officials have increasingly been leveled at the Court for its decision, calling into question the body's structure, effectiveness, and legality and have made some dubious as to the Court's capacity to achieve its aims. German Chancellor Angela Merkel stated at a joint news conference with U.N. Secretary General Ban Ki-moon, shortly after Bashir's indictment, that the ICC should be strengthened and "supported" and "not [spoken] critically against." But the Court cannot be expected to improve without serious critical scrutiny of its performance thus far. The ICC is not without its shortcomings, and as the court begins to take on some of its first cases and move forward it is imperative that the international community both engage with this institution in a candid manner and display a willingness to address its shortcomings as well as its strengths.

The premise on which the Court was founded is undeniably of merit. As history can attest, the twentieth century was one of the bloodiest, the atrocities of the World Wars, the Holocaust, and the genocides of Bosnia and Rwanda, to name a few, contributing to an estimated conflict death toll of 174 million as is cited at our project site USAforICC. The founding of the International Criminal Court finally marked a potential realization of the "never again" post-WWII commitment, the mission of the Court being to investigate, hold accountable, and bring to justice perpetrators of war crimes, effectively replacing ad hoc tribunals like the ones that dealt with Nazi crimes in Nuremberg and the United Nations courts that have dealt with Rwanda and Yugoslavia for a more permanent and stable body. Over 150 national delegations came together in Rome in July 1998 to create the ICC, and the Rome Treaty was signed by 120 countries in 1998. As of March 2008, 106 countries from every region and legal system of the world are States Parties to the Rome Statute and state parties currently include countries from all regions of the globe, including major US allies: all NATO members except Turkey, all member-states of the EU, and two Permanent Members of the UN Security Council (France and the United Kingdom).

The strengths of the Court have been lauded by many in the international community and should not go unrecognized. A unique institution, the ICC provides a mechanism for international prosecutions wherein crimes were committed in furtherance of a state policy or plan, thereby removing head-of-state immunity in acts of genocide. As an independent institution, it's non-affiliation with the United Nations prevents the Court from becoming a political instrument. We are currently witnessing this in the recent indictment of President Bashir in that major UN players like China that oppose the ruling and have a vested interest in Sudan will not have a direct effect on how the Court proceeds. Furthermore, despite the fact that cases can be brought forward to the ICC by the United Nations Security Council under Chapter VII of the UN Charter, by a country that has ratified the Rome Statute, or by the Prosecutor initiating the investigation (though he/she can only pursue it by the approval of the Pre-Trial Chamber), all the situations that have thus far come before the ICC, with the exception of Sudan, have been brought forward by the national governments of the countries concerned. These precedents combined with the fact that the Court can only try individuals and not entire governments and armies quickly dispels President Bush's misguided fear that the Court could function as a prosecutorial rogue, prosecuting military personnel for purely political purposes. Right now the Court is investigating abuses that have taken place in the Democratic Republic of Congo, Northern Uganda, the Central African Republic and Darfur, Sudan, all countries in which widely recognized genocidal war crimes have occurred.

Nonetheless, despite the Court's evident strengths in its structure and organization it is undeniable that, in real terms, it has achieved little in its five years of operation. This has proven frustrating to onlookers and called into question its overall effectiveness. Just days before the Court's 10^th anniversary milestone, Human Rights Watch released a special report on the Court titled, "Courting History: The International Criminal Court's First Years". Though concluding with support for the Court and its goal of obtaining international justice, the report highlighted what the organization perceives to be some of the court's critical failings and weaknesses. Most prominent amongst these failings include, the Court's lack of a police force, the difficulty of indictment, and lack of substantial financial and diplomatic support for the Court. The lack of a police force to carry out its rulings is perhaps the Court's most glaring weakness. In order to arrest suspects, therefore, the Court must rely on the goodwill of the countries in question as well as the United Nations to offer kinetic force. But as HRW notes in its report this cooperative dynamic has been sorely lacking.

According to the New York Times ICC topic section, legal experts have complained that the threshold for getting a case into the Court is so high that it impedes the justice process. The prosecutor can investigate the case only when the national court is unable or unwilling to do so and the prosecutor may only do so after convincing a three-judge panel that an existing international investigation or trial was a sham or that local courts shielded the individual from criminal responsibility. Furthermore, before a prosecutor can begin an investigation, the court has to notify the suspect's government. National authorities then have six months to conduct their own investigation to ward off the international prosecutor. With parameters such as these it is questionable how effectively the Court can administer a justice that can so easily be circumvented. Finally, the Court has been substantially weakened by the non-cooperation and even hindrance of countries such as Russia, China and the United States.

The United States' relationship to the ICC has been turbulent and inconsistent from its inception. Despite the fact that the United States has had a history of involvement with the ICC and was, in fact, largely influential in its foundation, the relationship between the US and the court has been strained by the opposition of the Bush administration, which not only opposes the Court but has introduced policies that would undermine its effectiveness. In December 2000, before leaving office, President Clinton signed the Rome Treaty and expressed the importance of continued engagement with the ICC believing cooperation with the Court was in line with U.S. concerns and objectives. The Bush administration, however, has made its opposition to the ICC loud and clear. In 2002, President Bush not only "unsigned" the Rome Statute that President Clinton signed December 2000 just before leaving office he also pushed for legislation such as the American Servicemembers' Protection Act (ASPA).

President Bush's objection to the ICC has primarily been connected to his position as Commander-in-Chief and desire to safeguard American military personnel. He has expressed concern that the United States would not be adequately protected under ICC provision and the Court could unfairly target US military personnel serving abroad charging thousands of US military forces with trumped up charges for war crimes.

But the performance of the Court thus far, alongside the stringent structure of its Statutes has only demonstrated the Court's political impartiality. Furthermore, even if US military personnel were to commit war crimes it would still be unlikely that they would be hauled into the ICC because the Court will only try a national of a state that is unable or unwilling to prosecute that national and will most likely be required only in countries with unsound judicial systems.

Bush's administration has taken drastic measures to curtail the influence of the ICC, the most alarming being the Bilateral Immunity Agreements (BIAs) to be signed between the US and state parties to the ICC. In what Nicholas D. Kristof of The New York Times referred to as "schoolyard bully diplomacy", the BIAs essentially stronghold ICC members into signing an agreement that grants the US immunity from ICC prosecution and the US grants the same favor in return and punish those who refuse to sign. Many ICC member states have refused to sign BIAs because they believe that doing so would breach their legal obligations to the Rome Statute, and as a consequence, these countries lose their U.S. military aid and additional economic support funds under the American Servicemembers Protection Act (referred to by disgruntled European leaders as "The Hague Invasion Act") and the Nethercuss Ammendment, both signed into law in 2002.

In its report on the Court, Human Rights Watch concludes that there needs to be more diplomatic and financial support from the international community if the Court is going to continue to move forward. At the moment Britain, Germany, and France help to finance the court and contribute staff members whilst the the European Union covers most of the Courts budget and the Netherlands pledged ten years of free rent in the Hague as well as $70 million for starting costs. The Bush administration has proven supportive on neither score and it is clear that the US's involvement will be imperative to the further success of the ICC. According to USAforICC, a project for Citizens of Global Solutions, the most recent national polls have found that 76% of Americans support the U.S. joining the ICC but American leaders do not hear from these pro-ICC constituents often enough to prioritize it as an issue.

Of even greater concern, as has been expressed by nations like China as well as human rights activists, and perhaps the Court's greatest challenge, is the theory that ICC's actions could counteract the UN peacekeeping apparatus. The recent indictment of Omar Hassan al-Bashir has only served to highlight this challenge as many are waiting with baited breath to see whether this indictment will result in further conflict in the Darfur region. Whilst judicial victories would certainly go a long way towards restoring faith in the viability and effectiveness of the Court in bringing about justice ,it may not be synonymous with achieving regional peace and security; the worries by many that the indictment might further add to political turmoil are not unfounded. Earlier this year, the situation in Uganda also highlighted the possible contradiction between a peace process and the work of the ICC when some rebel leaders required that their cases be terminated before the signing of any peace agreement.

In 2000 former Secretary-General, Kofi Annan wrote: "In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision." Any justice that is meaningful cannot be achieved at the price of swift conflict resolution and peace. How the ICC chooses to navigate these and other political and logistical difficulties will determine the course of Court for many years to come.